Bailey v. City of New York

159 A.D.2d 280, 552 N.Y.S.2d 283, 1990 N.Y. App. Div. LEXIS 2635

Opinion

Order, Supreme Court, New York County (Francis N. Pecora, J.), entered October 31, 1988, which granted plaintiffs motion for reargument and, upon reargument, adhered to its prior decisions of September 26, 1986 and April 13, 1987, denying plaintiffs motion, pursuant to General Municipal Law § 50-e (5), to file a late notice of claim, unanimously affirmed, without costs.

In support of his various motions to invoke the court’s discretion to permit him to file a late notice of claim, the plaintiff failed to sufficiently allege a malpractice claim. Nor did he provide a reasonable excuse for his eight-month delay. Under these circumstances, the fact that the hospital may have had knowledge of the circumstances surrounding his treatment, in the form of records in its possession, as in Matter of Quiroz v City of New York (154 AD2d 315), cannot excuse the failure to file. Here, there was no affidavit from the plaintiff or a doctor, but only a superficial affidavit from counsel in support of the motion. Such moving papers are totally unsatisfactory (Rodriguez v City of New York, 86 AD2d 533, appeal dismissed 58 NY2d 899; see also, Bullard v City of New York, 118 AD2d 447 [Kassal, J., concurring]). Concur— Sullivan, J. P., Milonas, Rosenberger and Smith, JJ.